Adoption Law: A Practical Guide

Nasreen Pearce is a retired circuit judge and former district judge of the Principal Registry of the High Court. She has written extensively on family law matters.

• PrefaceTable of CasesTable of StatutesTable of Statutory InstrumentsTable of European and International MaterialTable of Statutory Guidance, etcTable of Judicial Practice Directions and GuidanceList of Abbreviations1  Introduction2  Who May Adopt?People who may adoptAdoption by a coupleDefinition of ‘a couple’Marriage or civil partnershipEnduring family relationshipsAgeDomicile/habitual residenceDomicile of originDomicile of choiceHabitual residenceLosing and acquiring habitual residenceAdoption by a step-parentFactors to be taken into accountAlternatives to adoptionSome important factors for consideration for opting for an adoption orderSole applicantConditions that must be satisfiedParent as a sole applicantAdoption by relativesRestrictions on making adoption order3  The ChildStatutory requirementsAgeChild is aged 18 or over at the final hearingPresence in England and WalesHome with the prospective adopter(s)Time limitsPermission for the application to be made after a shorter periodHad his home with the applicantOpportunities to see the child and the prospective adopter(s) at home4  Placement for Adoption and Placement OrdersIntroductionBy whom and when may a child be placed for adoption?Placing children with parental consentChild under six weeks oldConsentMeaning of consentAdvance consent for the child to be adoptedConsent in relation to a child less than six weeks oldCounsellingObtaining consentConsequences of consent to placement for adoptionWithdrawal of consentConsequence of withdrawal of consent – return of the childDispensing with consentProhibition on removal from placementRemoval by an adoption agencyReturn/removal of a child in an emergencyRemoval from consensual placement under ACA 2002, s 19Removal after placement orderRestrictions on removal in pending proceedingsFrom foster parentsFrom partners of parentsFrom non-agency placementIn any other non-agency caseBreach of restrictions on removal – recovery ordersWhen and by whom can a breach be enforced?Orders the court is empowered to makeReview of child’s caseProcedure for application for a recovery orderForm of applicationWho should be made respondents?Procedure following issue of proceedingsPlacement under a placement orderGrounds for applying for a placement orderRequirement for local authority to apply for a placement orderMaterial that must be considered by agency decision makerCriteria that must be appliedPlacement order application procedureOverriding objectiveCase management duties and powersVenue gatekeeping and allocationTransfer of proceedings to another courtStarting proceedings – placement orderThe applicationRequest for dispensing with consentWho should be made respondents?Documents that must be filed with Form A50Steps the court will takeServiceFirst directions hearingDisclosure of confidential reportsProof of the child’s identityReports by adoption agency or local authorityFinal hearingPlacement order – form of orderDurationConsequences of a placement orderRevocation of a placement orderWho may apply for revocation of a placement order?What constitutes change of circumstances?When is a child said to be placed for adoption?How does the court exercise its discretion whether or not to grant permission?Revocation of placement order procedureForm of applicationWho should be made a respondent?VenueVariation of a placement orderForm of applicationWho should be made a respondent?Who should be served?VenuePower to grant injunctionApplication for a child’s name to be changedHow to make the applicationWho may apply?Who should be the respondents?ServiceRemoval of a child from the United Kingdom5  Conditions for Making an Adoption OrderIntroductionThe first condition – parental consentWho is a parent?Father without parental responsibilityGuardian of the childThe second condition – placements and placement ordersPermission to oppose an adoption orderDispensing with consentThe third condition – Scottish and Northern Irish permanence/freeing orderOther requirements6  Dispensing with Parental ConsentGrounds for dispensing with consentWhen will it be necessary to apply for dispensation of parental consent?How is the application for dispensation made?What criteria will the court apply in determining dispensing with consent?Parent or guardian cannot be foundLacks capacity to give consent within the meaning of the MCA 2005Incapacity within the meaning of the MCA 2005When is a person unable to make a decision?How should inability to make decisions be assessed?What are the principles that apply when considering whether a person lacks capacity?How can an incapacitous person be assisted?The child’s welfareParamount considerationChild’s welfare requires consent to be dispensed withGuidance on the approach to be adoptedProcedure for dispensing with consent7  Criteria to Be Applied – Welfare Must Be the Paramount ConsiderationIntroductionCriteria to be applied to welfare considerationThe child’s wishes and feelingsThe child’s particular needsThe likely effect on the child throughout his lifeAge, sex, background and any relevant characteristicsHarm the child has suffered or is at risk of sufferingThe child’s relationship with relatives and othersThe child’s relationship with othersReligious, racial, cultural and linguistic issuesDelayThe no order principleRange of powers8  Post-placement and Post-adoption ContactIntroductionContact post-placement orderVariation or revocation of contact order under ACA 2002, s 26Adoption agency’s power to disallow contactProcedure for making an application for contact under ACA 2002, s 26Who may apply?How should an application be made?Who should be made a respondent to the proceedings?Procedure for variation or revocation of contact order under ACA 2002, s 26Who may apply?How should an application be made?Who should be made a respondent?VenuePost-adoption contactGeneralPost-adoption contact where the child is placed by an adoption agencyWhat orders may the court make?Who are the person(s) who may be named in the order?Who may make an application for post-adoption order?Factors that the court must consider on an application for permission to apply for an order under ACA 2002, s 51AThe court’s approach to an application for permissionHow to make the application for permission under ACA 2002, s 51APost-adoption contact where the child is not placed by an adoption agencyVariation and revocation of contact orderHow should the application be made?9  Adoption Order Application – ProcedureIntroductionStarting proceedingsWho may apply?Who may be adopted?Form of applicationDocuments to be filed with Form A58Who should be made respondents?Steps to be taken by the court when the application is issuedFirst directions hearingRequesting the court to dispense with parental consentReports by adoption agency/local authorityDisclosure of confidential reportsThe final hearingPermission to oppose an adoption applicationService of copies of ordersCustody of documentsDisclosing information to an adopted adultHow to make the request for informationCommunication of information relating to proceedingsMeaning of ‘professional legal adviser’Meaning of ‘professional acting in furtherance of the protection of children’10 Amendment, Revocation and Setting Aside of an Adoption OrderAmendmentsRevocation and setting aside an adoption orderSetting aside an adoption orderPractice and procedureCancellation11 Consequences of AdoptionIntroductionMeaning of Adoption under ACA 2002, Ch 4Parental rights and dutiesStatus conferred by adoptionAdoptive relativesProhibited degree of relationshipNationality and immigrationChange of nameState benefitsInsurancePensionRules of interpretationProperty devolving with peerageTrustees and personal representativesTestamentary rights12 Adoptions with a Foreign ElementIntroductionThe UNCRCThe 1993 Hague ConventionObjectives of the 1993 Hague ConventionPreconditions for adoption within the 1993 Hague ConventionObligations of contracting statesAccredited bodiesNon-accredited bodiesProcedural requirementsThe receiving stateThe state of originDuty to protect the childConfidentiality, disclosure and preservation of documentsProhibition of paymentsDelayDomestic lawDuties of local authorities and adoption agenciesTypes of adoptions with a foreign element13 Convention AdoptionsIntroductionChild entering England and Wales where the United Kingdom is a receiving stateAge and residency requirementApplicationCounselling and provision of informationAssessment of eligibility and suitabilityThe agency’s decision and notificationProcedure following decision on suitabilityThe role of the Central AuthorityThe matching processThe adoption agency’s role following the 1993 Hague Convention, Art 16 reportProcedure to be followed by the Central AuthorityInstances when proposed adoption may not proceedProcedure following the 1993 Hague Convention, Art 17(c) agreementConvention adoption not made before entryProspective adopter(s) unable to proceedBreakdown of placementModification of status of adopted child for 1993 Hague Convention adoptionsRegistration of Convention adoptionApplication for Convention adoption orderHow to apply for a Convention adoption orderProcedure on making of a Convention adoption orderRefusal, withdrawal or annulment of Convention AdoptionRequirements where the United Kingdom is the state of originCounselling and information for the childCounselling and information for the parent, guardian and othersPermanence report and panel’s recommendationRole of the relevant UK CAProposed placement and referral to the adoption panelPrecondition for placementLocal authority’s reportParental Responsibility Order under ACA 2002, s 84Conditions that must be metHow to make the applicationConsequence of removal of a child from the United Kingdom without a parental responsibility order14 Overseas AdoptionsIntroductionRegistration in the United Kingdom of overseas adoptionEntry to the United KingdomAnnulment of an overseas adoptionGrounds for the applicationProcedure for application for annulmentParties to the applicationTiming of the applicationWhich court?First directions hearingTaking children out of the United Kingdom for adoptionRestrictionsPreconditions for removing a child from the United KingdomProcedureRecognition under common lawProcedureAppendix – List of the 87 designated overseas countries15 Intercountry Adoptions – Other than Convention Adoptions/‘Overseas Adoptions’IntroductionRestrictions on bringing children into the United KingdomExceptions to suspensionWhat the prospective adopter(s) must do to apply for exceptional treatmentRequirements for bringing children into the United KingdomApplicationThe agency’s decision and notificationReferral of case to the departmentRole of the appropriate departmentFees for services provided by local authority/adoption agencyFurther requirements before the child is brought into the United KingdomProcedure following arrival in the United KingdomWhat the prospective adopter(s) must doWhat the local authority must doApplication for adoptionApplication for adoption not madeConsequences of placementChange of nameReturn of the childConsequences of failure to return the childEffect of notice to return the child if proceedings are pendingRequirement for child to live with prospective adopters16 Adoption AgenciesIntroductionThe adoption panelConstituting an adoption panelMeetings/composition of adoption panelTerm of officeResignation and termination of officeFunctions of the adoption panelDeciding whether a child should be placed for adoptionOutlineThe child’s case recordCounselling, etc for the childCounselling, etc for the parent(s) or guardian and othersNotification of fathers and relativesSteps to be taken when a child is placed for adoption on the basis that the child’s father or extended family are not notifiedInformation about the childInformation about the child’s familyThe permanence reportThe adoption panel’s decisionDocuments to be sent to the panelThe role of the adoption panelAdoption agency’s decisionSummary of process for deciding whether a child is to be placed for adoptionAssessing and approving prospective adopter(s)Counselling and informationPreparation for adoptionThe prospective adopter’s/adopters’ case recordPolice checksFurther informationProspective adopter(s)’ reportMatters to be taken into accountProspective adopter(s)’ reportProcedure where a prospective adopter is considered unsuitable to adoptFunction of the adoption panelDetermining suitability to adoptNotification to prospective adopter(s)Independent review of qualifying determinationIndependent review panelProcessing an application for reviewProcedure to be followed by the adoption agencyAppointment of the panel and conduct of reviewWho may attend before the independent review panel?Procedure of the independent review panelRecommendation of the independent review panelReview of approvalTermination of approvalMatching and approval of placementsThe proposed placementAssessment of needs and preparation of the adoption placement reportReferral to the adoption panelFunctions of the adoption panel in relation to a proposed placementThe adoption agency’s decisionPlacement and reviewsProcedure to be followed before placementReviewsMatters to be considered on reviewNotification of reviewIndependent reviewing officerAppointment of an independent reviewing officerQualification of the independent reviewing officerFunctions of the independent reviewing officersContactThe Adoption and Children Act registerProcedure for applying for directions on notification to fathers and relativesVenueFirst initial directions hearingCase management17 Intermediary Services for Persons Adopted before 30 December 2005IntroductionWho can provide intermediary services?Services to be providedProcedure on receipt of the applicationRestriction on proceeding with an application from a relative for assistanceDiscretion whether or not to proceedConsent to disclosureVeto by the adopted personCounsellingSources of informationContacting the appropriate adoption agencyThe Registrar GeneralThe courtDisclosureFeesOffence18 Adoption Support Services and AgenciesIntroductionStatutory obligations on maintenance of support servicesMeaning of adoption support servicesPersons to whom adoption support services are providedCounselling, advice and informationFinancial supportServices to enable discussionContactTherapeutic servicesServices to ensure continuance of relationship and to assist in case of disruption of relationshipsDuty to provide informationTo whom should information set out in ACA 2002, s 4B be provided?What is the specified information which should be provided?Prescribed information required to be provided under regulationCircumstances in which information need not be providedAdoption Support Service AdviserServices for persons outside the areaFinancial supportCircumstances in which financial support is payableRemuneration for former foster parentPayment of financial supportCessation of financial supportConditions attached to financial supportTermination and suspension of paymentAssessment for financial supportRequest for assessmentMatters to be taken into consideration on assessmentInterview and reportReferrals to other agenciesThe planPreparation of the planNotice of assessmentNotice of decisionReviewsServices other than financial supportFinancial support paid periodicallyRecovery of expenses between local authoritiesFeesAdoption support agenciesStatutory frameworkThe prescribed adoption support servicesProviders of services who are excepted as adoption support agenciesFitness of the registered providerThe responsible individualThe registered managerTraining and standards of workStatement of purpose and children’s guideStatement of purposeThe children’s guideReviewArrangements for the protection of childrenRecordsComplaintsStaffFitnessEmploying staffDisciplinary procedureRecords of staffFinances and accountsNotices to the registration authorityNotice of absenceNotice of changesNotification of convictionNotices to the relevant authorityFees19 The RegistersIntroductionThe Adopted Children RegisterRole of the Registrar GeneralDisclosure to a person adopted before the ACA 2002Disclosure to a person adopted after the ACA 2002The registration of adoption ordersThe registration of Convention and overseas adoptionsThe applicant(s)Form of applicationThe Adoption Contact RegisterThe two parts of the Adoption Contact Register20 The Disclosure of InformationIntroductionInformation to be kept by adoption agenciesGeneral Data Protection RegulationTransfer of informationPermitted general disclosureDiscretionary disclosureDisclosure in pursuance of agreementMandatory disclosure for purposes of inquiries, etcDisclosure to an adopted adultWithholding of information on the ground of exceptional circumstancesInformation from the courtDisclosure of protected information about adultsWho may apply for protected information about adults?Manner in which the application should be madeSteps the agency should take and factors it must apply when making its decisionReasons for decision takenIndependent reviewDisclosure of protected information about childrenSteps the agency must take on receipt of the applicationFactors the agency must considerCounsellingProvision of counsellingDisclosure of information for counsellingConfidential informationSerial numberReports filed in the proceedingsProceedings heard in privateDocuments held by the courtAccess to information held by the courtIndex